OFFER AND ACCEPTANCE UNDER 2.207 1) The Acceptance 2202 (1) a) 2.

207(1) provides no guidance on communication as an offer, it concentrates on whether or not the response is an acceptance. b) If the acceptance is a seasonable and definite expression of acceptance with different/additional terms, you have an acceptance i) You do NOT have an acceptance if: (1) It is NOT seasonable (2) NOT a definite expression of acceptance or (3) EXPRESSLY CONDITIONAL c) For Counter-Offer under UCC: only a counteroffer is accepted only if it is clear that the offeror was aware of the alteration in terms and manifested assent to it by unambiguous words or actions, if this is not clear, you go to 2.207-3 2) Acceptance with Additional or Different Terms 2207 (2) a) 2.207(2) i) The additional terms are construed as proposals for addition to the contracts ii) The have to be BETWEEN MERCHANTS and they become part of the contract unless: (1) The offer expressly limits acceptance (2) The additional/different terms materially alter it (a) Would it result in Surprise or hardship if accepted? (b) Surpriseif the term is widely used, party has reason to assume it would be part of the contract, and its inclusion should come as no surprise (c) Hardshipdoes the term impose an unbargained for burden or does it detract significantly from the reasonable expectations of the other party (d) In most cases, both hardship and surprise need to be satisfied to some degree (e) Basicallyif there is more than a minimal impact, it is probably material (3) Notification to them has already been given or is given within a reasonable time after notice of them is received (a) You can state expressly, or you can object b) 2.207 (2) doesnt address different terms i) Comment 3 assumes that both different and additional terms fall within 2.207 (2) BUT a lot of courts take the word different literally ii) One approach to taking the different term literally is stating that because it is not stated, it must simply be disregarded iii) OTHER COURTS treat conflicting terms as cancelling each other out (1) The different terms of the boilerplates should fall away and be replaced by whatever term the law would supply in the absence of the agreement. This is called the knockout rule. This sounds very similar to 2.207 (3), but that provision never states that it should be applied to different terms, it is deaing with something else. 3) 2.207 (3) The Effect of Mutual Performance When No contract is formed by either parties writings a) Conduct by both parties, that recognizes the existence of a contract, is sufficient to establish a contract for sale ALTHOUGH the writings of the parties do not otherwise establish a contract. In such a case, the terms of the particular contract consist of

4)

5) 6)

7)

those terms on which the writings of the parties agree together with any supplementary terms incorporated under any other provisions of this act. b) 2.207 (3) only applies when there is no contract formed by the writings i) This typically occurs when an offerees response is not an acceptance with additional or different terms but instead, a counter-offer which has never been deliberately accepted. Common law has the last shot rule here, but 2.207 (3) seeks to avoid this. ii) If no contract was formed by the writings of the parties, but their conduct shows they intend a contract, contract exists but you dont use last shot iii) Instead, you use all the terms on which the parties agree, and all the conflicting terms fall away. (1) The gaps are fileld by supplementary terms recognized in the UCC and some can be added in as a matter of factual implication. Written Confirmation following an oral or informal contract under 2.207 (1) and (2) a) The drafters contemplated a situation where an oral or informal agreement is followed by written confirmations i) The parties have made a contract already and what is happening now involves subsequent information (o and a has already been concluded) ii) So basically: (1) If an oral or informal contract is formed AND (2) One of the parties thereafter send written confirmations, (3) And one or both confiramtions go beyond or vary what was agreed orally or informally (4) Any terms that add to or differ from oral contract cannot simply become part of the contract BUT INSTEAD (5) Must be treated as proposals in the same way that proposals in an acceptance What is material? a) Comment 4 and 5 give examplesm,,,,,k Remedies and Damages: a) If you want to make sure that you are never responsible for consequential damages make sure that the other party agrees to your remedies limitation b) If it is a term you care about negotiate, make it a dickered term c) Under 2207 its difficult to opt out of defaults Revised 2207 a) Has a contract been formed 2204 b) If yes, what are the terms c) Terms that hat appear in records of both parties that both parties agree on d) Terms supplied by code e) Everything else knocks out